In Esbin's comments, she reviews the Commission's theory of implicit or ancillary jurisdiction and concludes that both the case law and specific sections of the Communications Act cited in the NPRM fail to support the Commission's jurisdiction to regulate the Internet. The courts have not sanctioned the sweeping breadth of ancillary authority required to support the network neutrality proposals, and Congress has not explicitly empowered the FCC to regulate Internet services. Specifically, she states, sections 230(b) and 706(a) are statements of Congressional policy and goals, not operative regulatory mandates, and are incapable of supporting FCC regulation of the Internet or Internet services. Moreover, section 230 of the Act indicates Congress intended the FCC to observe a general policy of non-regulation or un-regulation of the Internet.

The FCC also cannot claim ancillary jurisdiction based solely on Title I because it does not contain specific statutory responsibilities. "The Commission's view that Title I may satisfy both prongs of the test for ancillary jurisdiction "is akin to saying that the FCC can regulate if its actions are ancillary to its ancillary jurisdiction, and that is one ancillary too many," Esbin states. The proposed rules also cannot be supported by the theory that the Commission can base ancillary jurisdiction on entire Titles of the Act simply because some Internet services may affect aspects of communications that are federally regulated. If such a theory was upheld, it would give the Commission limitless jurisdiction to regulate any communications technology at will, rendering the operative provisions of the Act meaningless and running counter to the powers specifically delegated to it by Congress.

"Unchecked regulatory discretion under the amorphous doctrine of 'ancillary jurisdiction' is every bit as big a danger to a free and open Internet as any of the other dangers the NPRM posits to support the proposed network neutrality rules," Esbin states. "If the FCC wishes to preserve the free and open Internet, it should stay its previous de-regulatory course under the Act, and refrain from attempting to adopt rules that are outside the scope of its lawfully delegated powers."